Citation NR: 9616325
Decision Date: 06/14/96 Archive Date: 06/24/96
DOCKET NO. 94-15 324 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts
THE ISSUE
Entitlement to an increased rating for a psychiatric
disability, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Shawkey, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1969 to
October 1971.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal from a March 1993 RO rating decision that denied
the veteran’s claim for an increased rating for his service-
connected psychiatric disability.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that an increased evaluation is
warranted for his service-connected psychiatric disability
due to symptoms that include anxiety attacks, nightmares, and
feelings of anger and rage.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports an
increased rating, to 30 percent, for the veteran’s service-
connected psychiatric disability.
FINDING OF FACT
The veteran’s service-connected psychiatric disability is
primarily manifested by nightmares, anxiety, anger, and
detachment from people, and is productive of an industrial
impairment and inability to establish or maintain effective
and wholesome relationships with people which is more than
moderate but less than severe.
CONCLUSION OF LAW
Resolving reasonable doubt in the veteran’s favor, the
criteria for a rating of 30 percent for his psychiatric
disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991 & Supp. 1995).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
The veteran’s service records show that his active duty in
the United States Army included a tour in Vietnam. The
service medical records reveal no treatment or diagnosis of a
psychiatric disability. The veteran did indicate on a
September 1971 Report of Medical History that he had
experienced depression or excessive worry.
In November 1971 the veteran filed a claim for VA
compensation benefits for a nervous condition.
The record contains a November 1971 medical VA medical record
diagnosing the veteran with anxiety reaction. The record
shows that the veteran complained of tension, apprehension,
nervousness and restlessness, and said that he was treated
for this when he first went into the service.
In February 1972 the RO granted service connection for
anxiety reaction and assigned the veteran a 10 percent
rating.
During a VA psychiatric examination in February 1973, the
veteran complained of sleepless nights, being jittery in the
mornings, and having stomach and nausea problems. He also
complained of feeling depressed and feeling unable to have a
good time. He said that he enjoyed his relationships with
his friends. On examination he appeared somewhat
apprehensive, tense, and tremulous. He showed no evidence of
any psychological problems and had no disturbances of thought
processes or thought content. His affect was appropriate and
his intelligence was normal. The examiner opined that the
veteran’s past diagnosis of anxiety probably represented more
of a situational problem since leaving service. The examiner
further opined that he expected that within a reasonable
length of time the veteran’s anxiety could be reduced to a
noncompensable rating. He said that at that time, though,
mild anxiety was a more appropriate finding. He diagnosed
the veteran as having mild anxiety.
In August 1992 the veteran filed a claim for an increased
rating for his service-connected psychiatric disability and
indicated that he was being treated at an outpatient VA
clinic for PTSD.
The veteran was evaluated at the VA mental health clinic in
August 1992 for an exacerbation of PTSD. He reported that he
was on the receiving end of fire in service and never got to
shoot back. He said that he was subject to rocket and mortar
attacks at night. He said he felt guilty about not being a
combatant, and he saw men injured and his roommate killed.
He said another roommate had become suicidal. He said that
such memories had flooded back to him upon seeing a childhood
friend have a stroke. He said he had become hyperaroused and
unable to sleep, and would bolt out of bed in the middle of
his sleep. He said he had always been unable to relax and
had become agitated. He said he had an uncontrollable temper
and wanted his hyperarousal to stop. He reported that he was
working for the Metropolitan Boston Transit Authority as a
revenue agent. Objective findings included anxiousness and
agitation. An impression was given of PTSD exacerbation.
Medication was prescribed.
During a later visit at the VA mental health clinic in August
1992, the veteran reported experiencing rage and sudden
intrusive memories that had been previously suppressed. He
also complained of decreased sleep. His problem was noted to
have worsened due to increased alcohol consumption which the
veteran wanted to stop. On examination he was found to be
more depressed with occasional tears. His insight was
limited but he was noted to be anxious for answers. An
impression was given of PTSD with a question of increased
depression. The veteran was advised to continue his
medication and was referred to the Veterans’ (Vet) Center.
The veteran underwent a VA medical examination in January
1993. At the time of examination the veteran said that
earlier that year he began to develop increased anxiety and
had become nervous and had difficulty breathing. He said he
rattled easily and worried a lot. He said he feared on
occasion that he was losing his mind, and suffered from
dreams of being sent back to Vietnam with people laughing at
him, and seeing his buddies killed. He said his wife thought
that there was something wrong with him. He said he was
still working for the transit authority and minded his own
business at work. He said that his wife had complained about
his heavy drinking, but said that he had cut down on drinking
since he began going to the veterans’ center. He also said
that his marriage had gotten better since he began going to
the Vet Center. He said he had a short fuse at home but that
his children were beginning to understand why he “blows up.”
Objective findings from the January 1993 VA examination
revealed that the veteran had good rapport, but had the odor
of alcohol on his breath. He showed symptoms consistent with
an anxiety state which were intermingled with PTSD symptoms.
He was noted to have persistent dreams related to Vietnam
along with a large mixture of anxiety symptoms such as excess
tension, restlessness, excess irritability, excessive worry,
and somatic symptoms of anxiety such as shortness of breath,
cardial palpitations and excessive sweating and sleep
difficulty. The veteran showed no evidence of depression.
He was well oriented and his intellectual functioning was
intact. He had good insight and judgment. He was diagnosed
as having generalized anxiety disorder with PTSD features,
and problem drinking.
At a hearing held at the RO in September 1993, the veteran
testified that up until a recent accident involving a back
injury, he had been going to the Vet Center twice a week for
a couple of years. He said from time to time he would have
anxiety attacks which caused breathing difficulty. He said
that he had a short fuse and had feelings of anger and rage.
He said that his wife and relatives were pressuring him to
see a psychiatrist. He said he suffered from occasional
nightmares of being sent back to Vietnam which would wake him
out of a sound sleep. He said he was taking Trazedone to
help him sleep. He said that he suffered from startled
reactions and that not a day would go by that he did not
think of Vietnam and of the guys that were left over there.
He said he had been working for the Transit Authority for 21
years as a driver and just went in and did his job. He said
he did not have a problem with anyone and did not socialize
with co-workers. He said that when he first started the job
he had some problems in arriving late which he attributed to
sleep difficulty caused by anxiety.
II. Legal Analysis
It is the judgment of the Board that the veteran’s claim for
an increased rating for a psychiatric disability is well
grounded, meaning plausible, and VA has fulfilled its duty to
assist him in developing evidence pertinent to his claim.
38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1995); 38 C.F.R.
§§ 3.103, 3.159 (1995).
Disability ratings are based, as far as practicable, upon the
average impairment of earning capacity resulting from the
disability. 38 U.S.C.A. § 1155 (West 1991). The various
ratings and disabilities are set forth in VA’s Schedule for
Rating Disabilities, codified in C.F.R. Part 4 (1995), which
includes Diagnostic Codes that represent particular
disabilities.
PTSD and generalized anxiety disorder are evaluated in
accordance with criteria set forth in 38 C.F.R. § 4.132,
Diagnostic Code 9411 (1995). A 10 percent evaluation is
warranted when there is emotional tension or other evidence
of anxiety productive of mild social and industrial
impairment. A 30 percent evaluation is warranted when there
is definite impairment in the ability to establish or
maintain effective and wholesome relationships with people
and when the psychoneurotic symptoms result in such reduction
in initiative, flexibility, efficiency and reliability levels
as to produce definite industrial impairment. A 50 percent
evaluation requires that the ability to establish or maintain
effective or favorable relationships with people be
considerably impaired and that reliability, flexibility and
efficiency levels be so reduced by reason of psychoneurotic
symptoms as to result in considerable industrial impairment.
A 70 percent evaluation is warranted where the ability to
establish or maintain effective or favorable relationships
with people is severely impaired and the psychoneurotic
symptoms are of such severity and persistence that there is
severe impairment in the ability to obtain or retain
employment. 38 C.F.R. § 4.132, Code 9411.
In Hood v. Brown, 4 Vet.App. 301 (1993), the United States
Court of Veterans Appeals stated that the term “definite” in
38 C.F.R. § 4.132 was “qualitative” in character, and invited
the Board to “construe” the term “definite” in a manner that
would quantify the degree of impairment. In a precedent
opinion dated November 9, 1993, the General Counsel of VA
concluded that “definite” is to be construed as “distinct,
unambiguous, and moderately large in degree.” It represents
a degree of social and industrial inadaptability that is
“more than moderate but less than rather large.” O.G.C.
Prec. 9-93 (Nov. 9, 1993). The Board is bound by this
interpretation of the term “definite.” 38 U.S.C.A.
§ 7104(c).
With these considerations in mind, based on the current
medical evidence of record, the veteran’s psychiatric
disability more nearly approximates the criteria of a 30
percent disability. His history suggests more than a
moderate degree of social and industrial inadaptability which
has affected his ability to relate to people. He testified
that he did not socialize with the people he worked with
despite his 21 year history with the same employer. He said
that he and his wife had their problems and he had a short
temper around the house manifested by anger and rage. He said
that his wife and other relatives have been pressuring him to
see a psychiatrist, and he was angry at not finding out that
he had PTSD for 22 years. He said that this has had an
affect on his wife and kids.
Pursuant to 38 C.F.R. § 4.130, the rating board must not
underevaluate the emotionally sick veteran with a good work
record. Although the veteran has been employed by the
Transit Authority for 21 years, his employment does not
negate his clinical symptoms of anxiety and PTSD. The
veteran’s PTSD was found to have been exacerbated in 1992 due
to seeing his friend suffer from a stroke. He reported
increased nightmares of Vietnam since that time along with
feelings of anxiousness, agitation and rage. Although his
sessions at the Vet Center have helped him, he still
experiences symptomatology reflective of definite social and
industrial inadaptability. The examiner from the January
1993 VA examination noted that the veteran had prominent
symptoms of an anxiety state which were intermingled with
PTSD. Such symptoms included excess tension, restlessness,
excess irritability, excessive worry, and sleep difficulty.
In light of the veteran’s symptomatology and in full
consideration of his history, a 30 percent rating is
warranted for his psychiatric disability. 38 C.F.R. § 4.130.
The veteran’s psychiatric symptomatology is not reflective of
a higher than 30 percent rating as his work and social
history do not approximate considerable impairment. The
veteran had been able to maintain steady employment for 21
years and had also been able to maintain interpersonal
relationships with his wife of many years and his children.
ORDER
An increased rating, to 30 percent, for the veteran’s
psychiatric disability is granted, subject to the law and
regulations governing the payment of monetary benefits.
G. H. SHUFELT
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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